Court Of Appeals Determines That Public Records Act Exemption For Proprietary Information Obtained By Public Agencies Can Be Asserted By Private Parties

In Robbins, Geller, Rudman & Dowd, LLP v. State, Division II of the Court of Appeals decided that private parties may assert the Public Records Act exemption in RCW 42.56.270(1) for certain financial, commercial, and proprietary information obtained by public agencies. Private parties may also assert that disclosure would produce a public loss, regardless of the agency’s position on the issue. However, the court declined to address the open question in Washington of the proper standard for an injunction based on an “other statute” exemption under RCW 42.56.070(1).

The law firm of Robbins, Geller, Rudman & Dowd sought to enjoin release of information that the firm submitted to the Washington Attorney General’s Office (“AGO”) as part of its response to a request for qualifications. Although the Court of Appeals held that the law firm could assert the proprietary information exemption under RCW 42.56.270(1), it reversed the trial court’s decision to issue a permanent injunction, finding that the law firm failed to prove that the exemption, or any other exemption, prevented disclosure of the information at issue in response to a public records request.

The court first addressed exemption under the Uniform Trade Secrets Act (UTSA), Ch. 19.108 RCW. In rejecting application of that exemption, the court held that the law firm failed to show that its fee proposal and insurance information differed significantly from information already in the public arena. The court also held that the firm had not demonstrated any reasonable attempts to keep previously published client information secret and that its reference lists, by their very nature, were created for dissemination outside the firm. Accordingly, the UTSA did not prevent disclosure.

Notably, the court declined to address the undecided issue of whether the PRA injunction standard, RCW 42.56.540, applies when a court relies on an “other statute” exemption, such as the UTSA, rather than a PRA exemption to bar disclosure. The AGO and the law firm argued that such “other statutes” provide independent bases for enjoining disclosure without consideration of the PRA’s injunction requirements. The requestor of the records and amici curiae argued that the PRA injunction standard must be satisfied, even for exemptions pursuant to “other statutes.” Although the parties urged the court to provide guidance, the court declined to address the issue because the UTSA did not exempt the materials at issue.

The court also rejected the law firm’s asserted PRA exemptions. The court largely focused on the proprietary information exemption under RCW 42.56.270, which exempts from disclosure “[v]aluable formulae, designs, drawings, computer source code or object code, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.” RCW 42.56.270(1). As a matter of first impression, the Court of Appeals rejected the requestor’s argument that a private party cannot invoke the exemption or assert a public loss. First, nothing in the statute restricted its application to public agencies, and unrestricted application was not inconsistent with the purpose of exemption. Second, because the PRA expressly allows interested parties to seek an injunction to prevent disclosure of exempt public records, private parties can assert public loss, even if the public agency chooses not to do so.

Nevertheless, the Court of Appeals held that the law firm failed to establish public loss under the exemption. Because the firm also could not establish any other exemption under the PRA for the information sought, the Court of Appeals reversed the trial court’s permanent injunction as to those records. However, the court declined to award penalties, costs, or attorney’s fees to the requestor because the AGO did not wrongfully withhold the records; it withheld the records pursuant to a court order. Thus, the requestor did not “prevail” against the agency under RCW 42.56.550(4).

Montana Supreme Court Upholds Public Employees' Right to Privacy in Employee Discipline Public Records Case

The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.

Upon direct review, the Montana Supreme Court resolved the competing state constitutional interests of the city employees’ right to privacy and the Gazette’s right to know by considering (1) whether the employees had a subjective or actual expectation of privacy, and (2) whether society was willing to recognize that expectation as reasonable. The court explained that not all public employees possess the same level of privacy in disciplinary matters: in circumstances where the status of a public employee requires a high level of public trust (e.g., elected officials or police officers), the expectation of privacy may be significantly lower than for an administrative employee; likewise, an administrative employee may have a lower expectation of privacy in behavior related to a duty of public trust (e.g., spending public money or teaching children). Accordingly, when a public employee has a lower expectation of privacy the burden of the party seeking disclosure is correspondingly reduced.

Here, the city employees were not elected officials, upper management, or department heads, nor was there any indication their misconduct violated any duty or public trust. While the employees had access to government computers and received their wages from tax dollars, the court stated that granting access to a computer does not demonstrate a public trust. Moreover, a public employee’s violation of office policy does not in turn violate a public trust simply because tax dollars pay the employee’s salary. On the facts presented, the court held that the city employees had an actual or subjective expectation of privacy in their identities that society would recognize as reasonable. Also, because the Gazette had already received relevant information related to the misconduct, investigation, and punishment of the city employees, any benefit of disclosing their identities was negligible at best. If the public was not satisfied with the punishment, it had all the information it needed to voice an opinion.

The dissent argued that even if the city employees had some expectation of privacy, society would not recognize that expectation as reasonable because the employees sought out and enjoyed pornographic material on city computers during work hours with full knowledge of the city’s Internet use policy. Part of this policy specified that employee computer usage was not anonymous and that the city could monitor individual accounts. The dissent further maintained that it was absurd to deem the city employees’ expectation of privacy as reasonable because in many cases the employees breached a security device in order to access the pornographic material, thus exposing the city’s computer network to damage from malware and viruses.

Anti-SLAPP Statute Held Inapplicable to PRA Injunction Actions that Do Not Primarily Seek to Limit Protected Activities

In a much‑anticipated Public Records Act case, the Washington Court of Appeals, Division I, held in Egan v. City of Seattle that PRA requests do not constitute constitutionally protected speech subject to the protections of the state’s anti‑SLAPP statute. 

James Egan submitted a Public Records Act request for certain internal investigation records, including 36 “dash‑cam” videos, from the Seattle Police Department. The City of Seattle withheld 35 of those videos, claiming that a specific provision of the state’s privacy statute (RCW 9.73.090(1)(c)) prohibited the City from releasing the videos until final disposition of a pending lawsuit arising from the recorded events. 

Egan disputed that the exemption applied and threatened to sue. Under the PRA’s injunction statute, RCW 42.56.540, the City moved to enjoin release of the videos and for declaratory judgment that the records were exempt from disclosure. Egan then filed a motion to strike under Washington’s anti‑SLAPP statute, RCW 4.24.525, arguing that the City sought to chill his right to public participation and petition with its injunction action. 

The anti‑SLAPP statute helps to protect a defendant’s exercise of First Amendment rights by providing a damages remedy for retaliatory litigation, otherwise known as “strategic lawsuits against public participation.” In order to prevail on an anti‑SLAPP motion, a defendant must first establish by a preponderance of the evidence that the claim is based on an action involving public participation or petition. Egan argued that the anti‑SLAPP statute applied because the City moved to enjoin Egan’s PRA request based on his “threat” to sue. 

The Court disagreed. The right to access public records is purely statutory. It is not granted by the state or federal constitutions or compelled by the First Amendment. Here, the City’s injunction action was not based on Egan’s threat to sue (protected speech), but instead it was based on the parties’ underlying controversy about whether the privacy statute applied as an exemption to Egan’s PRA request. Because the purpose of City’s injunction action was to determine an underlying controversy, as opposed to suppressing Egan’s right to sue under the PRA, the Court held that the anti‑SLAPP statute did not apply.  

State Supreme Court Clarifies Parameters of Law Enforcement Exemption Under the Public Records Act

In a 5-4 decision, the Washington Supreme Court in Sargent v. Seattle Police Department clarified the parameters governing the effective law enforcement exemption under the  Public Records Act (“PRA”), RCW 42.56.240(1).  Specifically, the court held that the categorical exemption for certain criminal investigation materials ceases to apply once the case has been referred to a prosecutor for a charging decision.  The court further held that there is no categorical exemption for internal investigation materials.  Rather, an agency must prove that each portion of the internal file it seeks to withhold is essential to effective law enforcement.

The facts in Sargent stem from an altercation between Evan Sargent and an off-duty Seattle police officer that resulted in the officer arresting Sargent for battery.  After a “rush file” investigation of the incident (requiring a probable cause determination within 48 hours after arrest), the Seattle Police Department (“SPD”) referred the case to the county prosecutor, who declined to file charges and referred the case back to the SPD for follow-up investigation.  Sargent made a public records request for materials related to his arrest and criminal investigation, which the SPD categorically denied under the effective law enforcement exemption.  After completing its follow-up investigation, the SPD referred the case to the city attorney, who also declined to prosecute, and the criminal investigation was closed.  Sargent then renewed his original public records request and also asked for information relating to a pending internal SPD disciplinary investigation of the officer involved.  While the SPD released some responsive criminal investigation documents, it categorically denied Sargent’s request for information related to the internal investigation, again citing the effective law enforcement exemption.

In the majority opinion written by Chief Justice Madsen, the court first reiterated its decisions in Newman v. King County, 133 Wn.2d 565 (1997), and Cowles Publishing Co. v. Spokane Police Department, 139 Wn.2d 472 (1999), which together established the narrow circumstances under which the effective law enforcement exemption can be applied categorically.  In Newman, the court allowed the agency to categorically withhold an ongoing murder investigation file, holding that the agency should not be required to parse the relevance of individual documents where the crime was unsolved and enforcement proceedings still contemplated.  This categorical exemption was court created; it is not provided for in the PRA.  Subsequently, the Cowles decision limited the Newman categorical exemption, establishing a bright-line rule that “where the suspect has been arrested and the matter referred to the prosecutor” the agency may no longer categorically withhold, but must establish the exemption for each withholding. 

In Sargent’s case, the court held that the categorical exemption ceased to apply once Sargent’s file was first referred to the county prosecutor, even though the case was later referred back to the SPD for additional investigation.  Accordingly, the case fell outside of Newman, and the SPD was required to prove why nondisclosure of each individual document was essential to effective law enforcement.  Because the SPD failed to do so, its response to Sargent’s request was improper.  

Similarly, the court held that the SPD should not have categorically denied Sargent’s request for internal investigation materials.  While certain internal investigation information can be withheld under the effective law enforcement exemption, the court declined to extend the Newman categorical exemption to such materials.  In particular, the internal investigation file was not an “open active police investigation file”; its main purpose was to reach an internal disciplinary remedy for proven misconduct.  Thus, the SPD was required to prove which specific portions of the file were essential to effective law enforcement, which it failed to do. 

Finally, the court declined to remand for reconsideration of whether the law enforcement exemption allowed the SPD to withhold witness identities under RCW 42.56.240(1) and (2).  The court held that remand was inappropriate in this case “where the trial court properly considered SPD’s arguments and SPD simply failed to meet its burden.” 
In a dissenting opinion joined by three other justices, Justice James Johnson principally took issue with the expiration of the categorical exemption at the time that law enforcement first refers the case for a charging decision.  Specifically, the dissent asserted that it was arbitrary to draw the line at the first referral to the prosecutor when the substance of the investigation could not possibly be done within 48 hours.  Instead, the dissent would have held that the categorical exemption can be renewed in the event that the prosecutor requests further investigation from law enforcement.  The dissent would have also held that the effective law enforcement exemption applies categorically to open and active internal disciplinary investigation files.  

Failure to Conduct a Reasonable Search Supports a Finding of Bad Faith Under the PRA

In Francis v. Washington State Department of Corrections, Division II of the Court of Appeals held that the Department acted in bad faith by not conducting a reasonable search in response to an inmate public records request, awarding both penalties and costs.  This is the second time in the past month that Division II has addressed the 2011 amendments to RCW 42.56.565, which now prohibits an award of PRA penalties to an inmate unless the responding agency acted in bad faith.  See Gronquist v. Dep’t of Corrections (Oct. 29, 2013).

Unlike Gronquist, however, here the court found that DOC acted in bad faith.  In particular, the court noted (1) a delayed response by the agency, (2) lack of strict compliance with PRA procedural requirements, (3) lack of proper training and supervision, (4) negligence or gross negligence, and (5) sufficient clarity in Francis’s request. In responding to the request, DOC spent no more than 15 minutes searching for the documents, which the court described as “almost a rubber-stamp situation.”  Despite these findings, the court also found no recklessness or intentional noncompliance, no intentional hiding or misrepresentation, and no deceit on DOC’s part.

DOC’s primary argument was that bad faith, which is not defined in the PRA, requires some intentional, wrongful act.  The court disagreed.  After reviewing PRA and non-PRA cases discussing bad faith,  as well as federal FOIA cases, the court determined that DOC’s proposed standard was untenable.  The court also looked to legislative intent and the underlying purposes of the PRA in concluding that bad faith should be given a broader reading. While bad faith would not apply where an agency simply made a mistake in a record search or followed a legal position that is subsequently reversed, it would be liable if it failed “to carry out a record search consistently with its proper policies and within the broad canopy of reasonableness.”  

After the court of appeals affirmed the trial court’s determination of bad faith and its award of $4,495 in penalties, the court reversed the trial court’s refusal to award costs.  Explaining that RCW 42.56.550(4) is a mandatory cost-shifting provision, the court held that Francis should have been awarded his costs as the prevailing party.  The court also awarded Francis his costs on appeal.

No PRA Penalties for Prisoners Absent Bad Faith; Prison Video Surveillance Properly Withheld

In Gronquist v. State of Washington, Department of Corrections, Division II of the Court of Appeals held that RCW 42.56.565(1) prohibits an award of PRA penalties to a prison inmate serving a criminal sentence absent a showing of bad faith by the agency who denied the request. 

Prison inmate Gronquist had requested several records from the Department of Corrections, including certain surveillance videos of the prison where he was incarcerated.  DOC withheld the surveillance videos as exempt investigative records essential to effective law enforcement under RCW 42.56.240.  DOC also inadvertently failed to disclose one page in a 96-page production of documents, which it later provided to Gronquist upon discovery of the error.  The trial court awarded penalties of $15 per day ($260 total) to Gronquist, but found no bad faith on DOC’s part.  Gronquist appealed on several grounds.

Although neither party advanced the argument, the court rejected Gronquist’s appeal of the PRA penalties on the ground that RCW 42.56.565(1) barred any penalties to a prison inmate absent a showing of bad faith.  Because the trial court found no bad faith by DOC, Gronquist was not entitled to any PRA penalties, although the penalties were ultimately left intact because DOC had not cross-appealed the award.  The court also confirmed that the statute applied to Gronquist’s lawsuit because “final judgment” (broadly defined to include exhaustion of appellate review) had not been entered when the statute took effect in 2011. 

With respect to the prison surveillance videos, the court observed that such videos fall squarely within the core definitions of “law enforcement” under RCW 42.56.240.  The court further held that DOC met its burden of showing that the nondisclosure was “essential to effective law enforcement” by submitting the affidavit of DOC’s Director of Prisons, who explained that providing inmates access to surveillance videos would allow them to exploit weaknesses in the surveillance system.  The court concluded that the videos were properly withheld as exempt from disclosure under the Public Records Act.

In the remainder of the opinion, which was unpublished, the court rejected Gronquist’s other arguments as insufficiently supported, abandoned on appeal, or moot.  The court also reiterated prior cases stating that the PRA does not require public agencies to research or explain public records, or to create records that do not exist.  

Constitutional Separation of Powers Protects Gubernatorial Decision Making

In Freedom Foundation v. Gregoire, the Washington State Supreme Court holds that separation of powers in the State Constitution creates a qualified executive privilege to protect certain gubernatorial deliberations.

Although Washington’s Constitution does not contain a formal separation of powers provision, the Court recognizes the doctrine based on the State’s multi-branch form of government. One branch will violate separation of powers if its activity “threatens the independence or integrity or invades the prerogatives of another.” Executive privilege preserves the integrity of the executive branch by protecting the chief executive’s access to candid advice and robust decision making.

But, the privilege is not unlimited. It extends only to communications made to inform policy choices that are authored or solicited by the governor or by gubernatorial aids with significant responsibility for formulating policy advice for the governor.

In order to assert the privilege, the governor must provide a privilege log that lists the documents sought to be protected, the author, the recipient, and a description of the document’s subject matter. Once the governor provides a sufficient privilege log, the communications are presumptively privileged. In order to overcome the privilege, the requestor must assert a particularized need for the requested materials. Only after the requestor demonstrates particularized need will a trial court determine whether that need outweighs the public interest served by protecting gubernatorial deliberations.

Here, Governor Gregoire asserted the privilege over five documents and part of a sixth document in response to a request by Freedom Foundation. Because Freedom Foundation refused to assert a specific need for the requested documents, the Court held that it could not compel the governor to disclose those documents.

The Record Counts: Properly Asserting and Explaining PRA Exemptions Before and During Litigation

In Gronquist v. Washington State Department of Licensing, the Washington Court of Appeals, Division II, held that the Department of Licensing improperly redacted several items from a business license application prior to disclosure. Citing RCW 42.56.070(1), Licensing argued that the home address, home telephone number, business telephone number, income information, employee information, banking information, and marital status information from a business license application were all exempt from disclosure under three “other statutes” incorporated into the PRA, among other exemptions.

The Court of Appeals disagreed. First, the redacted information was not protected tax information under Department of Revenue statutes. RCW 82.32.330 (return or tax information) did not apply to the redacted information because the statue, in fact, authorizes Revenue to disclose “tax information that is maintained by another Washington state or local governmental agency….” Because Licensing (another agency) held the application, the information was not protected tax information under the Revenue statute. Although the PRA itself also exempts personal tax information collected in connection with an assessment or tax, this exemption did not apply because business license applications do not provide financial information for tax purposes.

Second, Employment Security Department statutes also did not exempt the redacted information. RCW 50.13.020 (employer information or records) did not exempt the applicant’s marital status information because the Employment Security statute exempts only information “obtained by” Employment Security, and the PRA itself limits the scope of this statute to records “maintained by” Employment Security, RCW 42.56.410. Here, Licensing, and not Employment Security, maintained and obtained the business license application. Additionally, the Employment Security statute did not apply because the applicant, operating as a sole proprietorship, was not an “employer.”

Third, under a similar line of reasoning, the Court held that Department of Labor and Industries statutes did not apply. RCW 51.16.070 (employment information) did not exempt information in the application because the applicant was a sole proprietorship, did not have employees, and was not an “employing unit” under the statute.

The Court also held that Licensing failed to provide Gronquist with a proper and timely explanation for its redactions under RCW 42.56.210(3), initially and throughout every stage of litigation. First, Licensing failed to provide any explanation for the redactions in its initial production. Second, the explanation provided by Licensing after Gronquist filed this lawsuit failed to specify what information had been redacted, which exemptions applied to each redaction, or how those exemptions applied. Third, Licensing’s second explanation submitted in connection with in camera review also failed to link specific exemptions to specific redacted items. Finally, on appeal Licensing relied on different exemptions and only sought to explain some of the redactions.

The Court also noted that Licensing took eight business days to respond to Gronquist’s request, making its initial response three days late. Licensing argued that it received Gronquist’s letter on July 31, 2009, that its letter response to Gronquist was dated that same day, and that Gronquist did not controvert these facts in the record. Rejecting these arguments, the Court noted that Licensing submitted a declaration of one of its senior administrators stating that the office received Gronquist’s request “[o]n or about July 21, 2009.”

Although the PRA does not authorize a freestanding penalty for an agency’s failure to provide explanations for withholding records, failure to explain amounts to a “silent withholding” that may aggravate the penalty for wrongfully withholding a record. The Court recommended that these were proper considerations for determining the penalty amount on remand in order to “discourage improper denial of access to public records.”

Redact or Withhold? Will the State Supreme Court's New Disclosure Flow Chart Be Useful?

Yesterday was a busy day for public records issues, as the Washington Supreme Court issued two detailed decisions relating to the State Public Records Act. In Ameriquest Mortgage Co. v. Office of the Attorney General, the Court held records that include personal financial information protected under the Gramm-Leach-Bliley Act of 1999 (GLBA) must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted. On the other hand, in Resident Action Council v. Seattle Housing Authority, the Court held that records including information protected by certain federal housing regulations must be disclosed under Washington’s PRA, after making appropriate redactions. 

The Court in Resident Action Council also provided a new disclosure flow chart and exemption categories for agencies to use in determining whether to disclose information or records pursuant to a PRA request.


Records that Include Information Protected by the Gramm-Leach-Bliley Act are Entirely Exempt from Disclosure Under Washington’s PRA


In Ameriquest Mortgage Co. v. Office of the Attorney General, the Supreme Court unanimously held that records including information protected by the GLBA must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted.


The Court in Ameriquest reviewed PRA requests for documents held by the Washington State Attorney General’s Office that it received from Ameriquest Mortgage Company as part of an AGO investigation into Ameriquest’s lending practices. Under the GLBA, financial institutions are prohibited from disclosing nonpublic personal information without notice to the consumer. However, an exception applies to those financial institutions complying with an investigation.   The GLBA also prohibits agencies from using protected information outside the scope of their investigation and from disclosing such information to a third party. The Court in Ameriquest held that the documents obtained by the AGO that include nonpublic personal information protected by the GLBA are entirely exempt from disclosure under Washington’s PRA because redacting the nonpublic personal information prior to disclosure is outside the scope of the AGO’s investigation and, therefore, outside the use permitted by the GLBA.


(Note that in Resident Action Council, discussed below, the Court recognizes that this result is unusual. “If it is information within a record that is exempted, such information usually can be effectively redacted.”)


The AGO also obtained records from Ameriquest that did not include nonpublic personal information protected by the GLBA. The Court held that these records are subject to disclosure under Washington’s PRA because (1) the documents are not essential to law enforcement and, therefore, do not qualify under the statutory investigative record exemption (RCW 42.56.240); and (2) the documents are not exempt under the State Consumer Protection Act (chapter 19.86 RCW), as Ameriquest provided them voluntarily rather than pursuant to a civil investigative demand.


Records that Include Information Protected by HUD Must be Redacted and Disclosed Under Washington’s PRA


The Supreme Court in Resident Action Council v. Seattle Housing Authority held that records including information protected by HUD must be disclosed under Washington’s PRA, except for the personal information of welfare recipients, which should be redacted. The Court also held that it was within the trial court’s discretion to order the Seattle Housing Authority (SHA) to (1) electronically produce documents that are redacted in a particular format; (2) publish procedures regarding public records requests, a list of applicable exemptions, and policies governing redaction, explanations of withholding, and electronic records; and (3) pay statutory damages ($25 per day) and attorney fees to the Resident Action Council.


Under HUD regulations, SHA is required to keep one copy of each written grievance decision in the tenant’s folder and another copy with all names and identifying references deleted on file for inspection by other tenants who may seek to file a grievance in the future. RAC requested electronic copies of all hearing decisions (both redacted and unredacted) under Washington’s PRA. SHA unsuccessfully argued that HUD regulations preempt disclosure of the unredacted decisions and that an unredacted decision is entirely exempt from disclosure if it contains personal information of welfare recipients. 


In the majority opinion written by Justice Gonzalez, the Court stated that HUD regulations merely ensure a limited form of disclosure to a limited class of persons in order to promote fairness within each housing authority’s grievance hearing process. HUD has made clear that it intends for state laws to generally govern disclosure and production of housing authority documents. 


The Court also stated in the majority opinion that most of the 141 exemptions under the PRA are “categorical,” exempting without limit a particular type of information or record (e.g., RCW 42.56.230(5) (exempting debit card numbers)). Conditional exemptions, which are less numerous, exempt a particular type of information or record, but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case. If a type of record is exempt, then meaningful redaction generally is impossible, unless redaction actually transforms the record into one that is outside the scope of the examination. If information within a record is exempt, such information “usually” can be effectively redacted. (Note, the Court reached an “unusual” result in Ameriquest Mortgage Co., discussed above, with respect to information protected by the GLBA that cannot be effectively redacted). 


The majority opinion divides the 141 current statutory PRA exemptions into the following new categories (set forth in Appendix A of the decision):


(1) Categorical-information exemptions;

(2) Categorical-record exemptions;

(3) Categorical-hybrid exemptions (exempting both information and records);

(4) Conditional-information exemptions;

(5) Conditional-record exemptions;

(6) Conditional-hybrid exemptions; and

(7)  Ambiguous exemptions that “require serious consideration and construction” prior to any attempt at appropriate grouping.


Applying the new exemption categories, the majority opinion then set forth the following disclosure flow chart, instructing agencies on the steps that must be taken in determining whether disclosure is required under the PRA:



Notably, the concurring opinion written by Chief Justice Madsen stated that the categories and flow chart in the majority opinion exceed the scope of the question before the Court. The concurring opinion also stated that several of the majority’s PRA classifications are questionable. While four out of the nine justices signed the majority opinion, Justice Owens joined only with the result, which may limit the precedential value of the new chart and categories.

Under the PRA, Non-Physicians are Peers of Physicians

Responding to complaints about Dr. Cornu-Labat, Quincy Valley Hospital conducted two ad hoc investigations concerning separate allegations of intoxication and incompetency to practice medicine.  The ad hoc investigations failed to uncover enough evidence to substantiate either claim.  However, hospital administrators “remained concerned” for the Doctor, placed him on paid administrative leave, and referred him to the Washington Physicians Health Program.  After Dr. Cornu-Labat refused to visit WPHP, which precluded WPHP from issuing a recommendation on his fitness to practice medicine, the Hospital fired him. 

Dr. Cornu-Labat filed separate Public Records Act requests for documents relating to both investigations.  The Hospital denied the first request, claiming the Hospital was not an agency subject to the PRA and that the records relating to the intoxication investigation were “investigative” and exempt under RCW 42.56.240.  His second, third, and fourth requests sought documents from both investigations, and the Hospital eventually denied those requests under PRA exemptions specific to the healthcare industry. 

The Grant County Superior Court held that the peer review exemption cited by the Hospital did not apply because under RCW 4.24.250 (and RCW 42.56.360) peer review committees must be regularly constituted and consist of professional peers.  The ad hoc investigations here included non-physicians. 

The Washington Supreme Court reversed and held that the plain language of RCW 4.24.250 extended the exemption to committee records of non-physician staff sitting on the committee.  RCW 42.56.360 did not narrow the scope of “peer review committee” for the purposes of exempting records from disclosure under RCW 4.24.250.  Because other peer review statutes allow officers, directors, and employees to sit on review committees, the Hospital’s ad hoc investigations qualified as peer review committees even though non-physicians participated. 

The Court remanded on this issue to determine whether the investigations were a function of regularly constituted committees or whether the investigations were conducted by ad hoc committees not entitled to the exemptions under RCW 4.24.250.  The Court also remanded to determine whether the records sought embodied the proceedings of a formal meeting of the Hospital board (or its staff or agents) concerning the Doctor’s clinical privileges and therefore exempt from disclosure under RCW 70.44.062(1)).  If the records were generated during a general investigation into Dr. Cornu-Labat’s alleged misconduct, then this exemption would not apply. 

Finally, the Court rejected the Hospital’s argument that the confidentiality provision of Dr. Cornu-Labat’s employment contract precluded the Doctor from requesting hospital records involving members of its medical staff.  The Doctor’s identity and his employment contract were irrelevant “because the PRA states that agencies may not inquire into the identity of the requestor or the reason for the request.”  Employment contracts “cannot override the PRA.”